IN THE CASE OF:
BOARD DATE: 8 May 2014
DOCKET NUMBER: AR20130021255
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests removal of the following documents from his Army Military Human Resource Record (AMHRR):
* Orders 167-24, dated 16 June 1999
* Orders 298-144, dated 25 October 1999
* Orders 298-144, dated 25 December 1999
* Orders C-01-101669, dated 22 January 2001
* DA Form 4187 (Request for Personnel Action), dated 2 June 2001
* Orders 01-236-068, 24 August 2001
2. The applicant states:
a. These records should never have been produced.
b. Shortly after leaving the Active Army, he was contacted by an Army Reserve recruiter and after speaking with the recruiter he decided to try the Army Reserve.
c. He was told that his active Army time had met his contractual obligations and if he decided that the Army Reserve did not fit his lifestyle, he could request to be transferred back to the Individual Ready Reserve (IRR).
d. He tried the Army Reserve for three Battle Assembly periods and came to the conclusion that he did not want to be a member of the Reserves at that time in his life.
e. He requested transfer back to the IRR in October 1998 and was informed by the unit that the paperwork was processed and he was no longer required to attend any Army Reserve activities.
f. It is unclear what happened after that as he was not contacted in regard to any matters from that time forward.
g. Apparently, he was placed into the 99th Regional Support Command (RSC) and discharged from that unit as an unsatisfactory participant.
h. In January 2001, he was "supposedly" transferred from the U.S. Army Reserve (USAR) Control Group back to the 630th TC Company and was subsequently placed on an annual training order that he never received.
i. He was then placed in an absent without leave (AWOL) status and then discharged back into the USAR Control Group as an unsatisfactory participant.
j. He is aware of the way that some recruiters during that timeframe were under extreme pressures in meeting their quotas and in quite a few instances performed actions such as the aforementioned disservices to Soldiers like him who had no idea that their reputations and service records were being blemished.
k. It is not fair for him to have to go through the arduous task of attempting to get his records "cleaned up" in order to prevent himself from potentially being evaluated in the future based on indiscretions and unethical decision of others.
l. The memorandum from the commander of the Reserve unit he was mistakenly transferred to points out that he was not properly processed.
m. The DA Form 4187 citing him as AWOL should show he was processed as an IRR no show and transferred back to the USAR Control Group instead of showing he was an AWOL Soldier.
3. The applicant provides:
* Memorandum for Record (MFR), dated 12 April 2013
* MFR, dated 28 May 2013
* Orders 167-24
* Orders 298-144 (two copies)
* Orders C-01-101869
* DA Form 4187
* Orders 01-236-068
CONSIDERATION OF EVIDENCE:
1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant enlisted in the USAR Delayed Entry Program on 26 July 1993. He enlisted in the Regular Army on 15 July 1994. He completed training as a cavalry scout.
3. On 15 July 1998, the applicant was released from active duty and he was transferred to the USAR Control Group (Reinforcement) to complete his Reserve obligation.
4. The applicant submitted a request (voluntary) to be transferred to the 630th TC Company in Washington, PA, on 22 July 1998.
5. On 28 July 1998, USAR Personnel Command Orders C-07-826016 were published releasing him from the USAR Control Group (Reinforcement) and assigning him to the 630th TC Company (Medium Truck).
6. On 16 July 1999, 99th RSC Orders 167-24 were published releasing the applicant from the 630th TC Company and assigning him to the 99th Headquarters Brigade, effective 22 June 1999.
7. On 25 October 1999, 99th RSC Orders 298-144 were published releasing him from the 99th Headquarters Brigade as an unsatisfactory participant and assigning him to the USAR Personnel Command (Annual Training), effective 31 May 1999.
8. On 22 January 2001, USAR Personnel Command Orders C-01-101669 were published releasing the applicant (voluntary) from the USAR Control Group (Annual Training) and assigning him to the 630th TC Company, effective 19 January 2001.
9. A DA Form 4187 was completed on the applicant on 2 June 2001. The form shows that the applicant's status changed from assigned, not joined (ASNJ) to AWOL, effective 31 March 2001. The form states that the applicant failed to report for active duty annual training as shown in Orders C-01-101669, dated
22 January 2001.
10. Headquarters, 99th RSC Orders 01-236-068 were published on 24 August 2001, releasing him from the 630th TC Company as an unsatisfactory participant and assigning him to the USAR Control Group (Annual Training).
11. On 25 January 2002, USAR Personnel Command Orders C-01-202372 were published releasing the applicant from the USAR Control Group (Annual Training) and assigning him to the 360th TC Group, effective 24 January 2002.
12. The applicant is currently a member of the USAR, assigned to a Troop Program Unit.
13. The applicant provides an MFR from his former commander endorsing his request for removal of the identified documents from his AMHRR. In the MFR his former commander talks about a scandal that took place before he took command and he speculates about what possibly could have occurred in the applicant's case.
14. Army Regulation 600-8-104 (Military Personnel Information Management/ Records) provides policies, operating tasks, and steps governing the AMHRR. Depending on the purpose, documents will be filed in the AMHRR in one of three sections: performance, service, or restricted. This Army regulation also instructs that once placed in the AMHRR, the document becomes a permanent part of that file and will not be removed or moved to another part of the AMHRR, unless directed by appropriate authority.
15. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contentions have been noted. His supporting evidence has been considered.
2. His AMHRR does contain the orders and the DA Form 4187 which he now contends should not have been produced. The MFR prepared by his former commander only speculates as to what might have occurred in the applicant's case. Her speculation does not amount to evidence. There are no provisions for allowing an individual to be released from a voluntary assignment and be transferred to the IRR after only 3 months of service in that assignment. There is nothing in his enlistment contract that indicates that he was misinformed.
3. The available evidence shows that the applicant's records were available for his review throughout most of his career in the military. There is no evidence in the available record showing that he ever attempted to have the orders and DA Form 4187 removed until now and they do not appear to have been erroneously filed therein.
4. The Army has an interest in maintaining the accuracy of its records for historical purposes. The information in those records must reflect the conditions and circumstances that existed at the time the records were created.
5. There is a reluctance to change the official records until such time as it can be determined that an error does, in fact, exist. The applicant has failed to show that the orders and the DA Form 4187 that he requests to be removed should be removed.
6. In view of the foregoing, the applicants request should be denied.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
____X____ ____X____ ____X____ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
_______ _ _X______ ___
CHAIRPERSON
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont) AR20130021255
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20130021255
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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